Employment Discrimination Blog

Every four years, the U.S. Equal Employment Opportunity Commission approves a Strategic Plan, which in part directs itself to develop a Strategic Enforcement Plan. On December 17, 2012, the Commission approved the 2013-2016 Strategic Enforcement Plan with bipartisan support and a vote of 3 to 1.

Much of the Strategic Enforcement Plan, frankly, is filled with the kinds of sweeping promises and legal jargon that one might expect from a government planning document. However, one interesting area of the Strategic Enforcement Plan is the section on “national priorities.” In this section, the EEOC identifies a handful of legal issues relating to illegal employment discrimination that it is better able to manage and address because the groups of affected individuals are so large or because the legal issues are so unsettled.

Eliminating Barriers in Recruitment and Hiring
The EEOC plans to target recruiting and hiring policies that are either intentionally discriminatory or that appear to be neutral but have a greater adverse impact on protected groups of workers. The EEOC named the following types of recruiting and hiring practices that it will examine: steering applicants into specific jobs based on race, sex, age, disability, etc.; restrictive application processes; and the use of screening tools like pre-employment tests, background checks, and date-of-birth inquiries.

Protecting the Rights of Immigrant and Migrant Workers
The EEOC stated a commitment to focus enforcement efforts on claims brought by immigrant and migrant workers, who – because of language and cultural barriers – are often unaware of their legal rights or reluctant to exercise their employment rights.

Emerging and Developing Issues
This is the most commented-on section of the EEOC’s Strategic Enforcement Plan. The EEOC identified three emerging employment discrimination issues that it will keep a close eye on over the next four years:

Enforcement of the Americans With Disabilities Act, especially issues relating to who is covered, how a worker qualifies for a reasonable accommodation, how a business demonstrates that an accommodation is an undue hardship, and the definition of “direct threat”

Whether and how employers are required to respond to pregnancy-related requests for reasonable accommodations

Whether and how Title VII’s prohibition of sex discrimination may apply in certain cases to lesbian, gay, bisexual or transgendered workers

Equal Pay for Women in the Workforce
Congress passed the Equal Pay Act in 1963, but the EEOC still considers enforcement of equal pay for equal work laws a high priority, especially in the form of compensation systems that appear neutral but have a greatly adverse impact on women.

Enforcing Anti-Retaliation Provisions
The EEOC is always on the lookout for employment policies and practices that discourage or prevent workers from exercising their employment rights. The EEOC named the following policies as examples of illegal retaliation or obstruction: retaliatory actions against employees, overly broad waivers, settlement provisions that prohibit filing EEOC charges or assisting with an EEOC investigation, and failure to retain records required by EEOC regulations.

Preventing Harassment
According to the Strategic Enforcement Plan, sexual harassment in the workplace has been overtaken by other types of illegal harassment. “Harassment claims based on race, ethnicity, religion, age and disability combined significantly outnumber even sexual harassment claims in the private and public sectors,” the plan stated.

The federal government recognizes that challenges exist for employers who want to recruit and hire war veterans. Many veterans, especially those who have seen combat duty, return to the workforce with medical conditions like post-traumatic stress syndrome (PTSD) or traumatic brain injury from explosive-related concussions. Veterans who are employees may require accommodations in order to successfully perform their work functions.

The medical conditions that veterans bring to the workplace may be unfamiliar to some employers, even those with significant experience negotiating reasonable accommodations for other employees with other types of disabilities or medical conditions.

Keep in mind that PTSD is not automatically a medical condition covered by the Americans With Disabilities Act (ADA). The ADA does not include a list of covered medical conditions. Instead, the ADA defines disability as a physical or mental impairment that substantially limits one or more major life activity. Therefore, some returning veterans with PTSD may be protected by the ADA, whereas others may not be.

Be that as it may, many employers wish to support returning veterans by offering employment and by offering accommodations so that veterans may perform their jobs. But, how many employers know what kind of accommodations to offer to an employee with PTSD or a traumatic brain injury?

This is where “America’s Heroes at Work” comes in handy. Published by the U.S. Department of Labor and launched in mid-December 2012, the America’s Heroes at Work website provides a comprehensive resource service for employers who wish to recruit, hire and retain veterans. In addition to offering answers to frequently asked employer questions about veterans in the workplace, the America’s Heroes at Work website provides a step-by-step customizable toolkit that employers can use to design and implement a veterans’ recruitment and retention strategy.

America’s Heroes at Work answers questions that employers might have, such as:

Will a person with PTSD have violent outbursts at work?
“Employees who manage their symptoms through medication or psychotherapy are very unlikely to pose a threat. Employers may help reduce the overall stress in the work environment or mitigate known vulnerabilities to stress by providing a job accommodation.”

Does the law require employees or applicants with PTSD or traumatic brain injury to disclose their conditions when returning to or applying for a job?
“No. Employees need only disclose their disability if/when they need an accommodation to perform the essential functions of the job.”

The America’s Heroes at Work website also provides access to a wealth of additional resources for employers who are seeking to offer employment to returning war veterans, wounded warriors and military spouses.

Reasonable accommodations that might support a veteran with PTSD in the workplace include scheduled rest breaks to prevent stimulus overload, job coaching, office locations in quiet areas, and job sharing.

On November 7, the Fulton County (Georgia) Commission adopted an anti-bullying policy to protect county workers. The policy applies to employees, department heads and elected or appointed officials, including part-time and temporary employees.

Fulton County Commissioner William Edwards (District 7) introduced the measure, stating that the county’s existing workplace violence protection policies did not adequately protect employees against bullying.

Fulton County’s new anti-bullying provision defines bullying as verbal abuse; threatening, humiliating or intimidating conduct; sabotage or work interference that prevents work completion or performance; or exploitation of a known psychological or physical vulnerability.

The policy requires employees to remove themselves from a bullying threat and report the behavior as soon as possible, either to a direct supervisor or to the county manager if the offender is the employee’s supervisor. Under the new anti-bullying policy, supervisors must take action to protect the alleged victim, including separating the alleged victim from the alleged perpetrator and investigating the allegations.

The minimum penalty for a first offense is 5-day suspension without pay. The second offense will result in the employee’s dismissal.

Should private employers follow Fulton County’s example? Bullying is a common workplace occurrence, according to studies such as the 2010 Workplace Bullying Institute’s survey. But does bullying do damage to the workforce and the bottom line? Additional research suggests that it may do so.

Bullying at work may reduce employee productivity and employee morale. It may also result in higher employee turnover and absenteeism. Bullying may also result in increased medical insurance and workers’ compensation claims.

In 1998, the University of North Caroline studied 775 targets of workplace bullying:

28 percent spent work time avoiding the bully and the environment

22 percent decreased their work effort

12 percent changed jobs

Employers may want to review their workplace violence protection policies and consider adding an anti-bullying provision to their employee manuals. If an employee is found to be a known bully and repeat offender, an anti-bullying provision may give the human resources department the necessary resources to pursue appropriate disciplinary action. Adding a short anti-bullying section to the new employee training agenda helps create a workplace environment where all employees know that bullying is not tolerated.

To ensure that your anti-bullying policy complies with federal and state employment laws, ask an experienced business law and employment discrimination attorney to review the policy before you add the final version to your employee handbook.

Was it illegal workplace discrimination when a church fired an employee after she refused to take the church’s advice to cease living with her fiancé, to whom she was not yet married?

Jessica Atkinson, of Perry, Georgia, believes it is. Ms. Atkinson filed an employment discrimination lawsuit against Friendship Baptist Church, a Warner Robins church, on Oct. 3, 2012. She claims she was fired as the nursery school coordinator after church leaders questioned her live-in relationship with her fiancé. According to the legal complaint, Ms. Atkinson was questioned in a meeting about why she was not married, as well as about her sexual relationship with her fiancé.

Ms. Atkinson said she told church officials she believed she was being discriminated against because of her religion, even though she is a member of the Baptist Church. She also stated that she believes she was singled out by the church because she is female.

In previous, similar lawsuits, churches have claimed the “ministerial exception.” The ministerial exception is an exception to federal laws prohibiting workplace discrimination that states that ministers of a church may be required to adhere to the tenets of the church.

Ms. Atkinson’s lawyer pointed out that she was not a pastor, but a nursery school teacher. The attorney also stated that membership in the church was not a requirement of Ms. Atkinson’s job, and she was not ordained as a pastor of the church in order to hold the position, which she worked in since 2007 until she was terminated. Ms. Atkinson’s lawsuit argues that, given these facts, the ministerial exception should not apply.

A recent example of a lawsuit in which the ministerial exception was successfully applied is Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, decided by the U.S. Supreme Court on January 11, 2012. In that case, a former church teacher alleged disability discrimination when she was terminated after notifying the school she had been diagnosed with narcolepsy. The school hired another teacher and suggested the teacher resign due to her medical condition. The Supreme Court applied the ministerial exception, even though the plaintiff spent the majority of her time teaching secular rather than religious subjects. The Supreme Court’s majority opinion pointed out that the former teacher had received the title "Minister of Religion, Commissioned" and instructed students in prayer. The Supreme Court ruled that, given those facts, the ministerial exception should apply in that case. Thus, the teacher’s termination was upheld.

On September 10, the clerk and employees of the Magistrate Court of Murray County filed charges against the former Chief Magistrate Judge. The charges, filed with the Atlanta Division of the U.S. Equal Employment Opportunity Commission (EEOC) allege that the employees were forced to work in a hostile work environment. The employees separately claim that they suffered under improper employment practices and suppression of their free speech rights.

The former Chief Magistrate Judge, Bryant Cochran, had only recently resigned his post during an inquiry into whether he pre-signed arrest warrants and asked a woman for sexual favors in return for a positive outcome on her case.

Few details are available about the employees’ allegations. What is known, however, is that the three women who signed the EEOC charges comprise the third, fourth and fifth woman to step forward recently to complain about the former judge’s inappropriate behavior. By filing the EEOC claim, the women have secured protected status for any other county employees who have information to support the claims of a hostile work environment.

"Any employee who has witnessed or knows of these matters personally should come forward and be protected under the law," said McCracken Poston, a Ringgold, Georgia, attorney hired to represent the women.

“The employees of the clerk’s office … have suffered from the improper and abhorrent actions of former Judge Cochran,” added Stuart James, a Chattanooga, Tennessee, attorney also representing the female complainants.

An employer may be guilty of allowing a hostile work environment if the employees can show evidence that they were exposed to a pattern of unwanted sexual behavior, comments, or visual displays – such that they feared going to work. The employees must also present evidence that no management action was taken in response to their internal complaints.

The Equal Employment Opportunity Commission has settled its disability discrimination lawsuit against Garney Construction Company and Georgia Power Company. In June 2012, the EEOC announced that Garney Construction and Georgia Power will pay $49,500 and provide additional training and guidance to employees and management regarding illegal disability discrimination.

The EEOC filed the Georgia disability discrimination lawsuit on behalf of Bryan Mimmovich, who applied for a job as a front-end loader with Garney Construction, a job he had held twice previously. Mr. Mimmovich was diagnosed with epilepsy at age 12 and had been free of seizures for more than eight years while taking anti-seizure medication.

Garney Construction’s contract with Georgia Power required job applicants to pass a physical examination – either the Department of Transportation (DOT) physical examination, an American Society of Mechanical Engineers (ASME) physical examination for crane operators, or another equivalent medical examination. However, federal law does not require heavy equipment operators to pass a physical examination. Because he was taking medication for epilepsy, Mr. Mimmovich automatically failed the DOT physical examination. Garney Construction withdrew its job offer, stating that its contract with Georgia Power prevented it from hiring Mr. Mimmovich.

Mr. Mimmovich filed a complaint with the EEOC, which filed a lawsuit against Garney Construction and Georgia Power after failing to resolve the issue via mediation and conciliation efforts. The EEOC’s lawsuit claimed that Garney Power illegally discriminated against Mr. Mimmovich because of his disability and that Georgia Power illegally interfered with Mr. Mimmovich’s employment relationship with Garney Construction by requiring Garney to refuse to hire Mr. Mimmovich when he failed the DOT physical examination instead of requiring Garney Construction to offer Mr. Mimmovich an individualized assessment of his ability to perform the job of front-end loader operator.

To settle the lawsuit, Garney Construction and Georgia Power will pay $49,500 to Mr. Mimmovich. Both companies will also re-distribute anti-discrimination policies and schedule employee training regarding disability discrimination and pre-employment physicals.

Employers who use pre-employment physical examinations to screen potential employees should take care to ensure that these examinations do not illegally exclude applicants who are actually qualified to perform the job for which they are applying. Employers should consider offering individual employment assessments to applicants with disabilities and should seek qualified legal advice to answer any questions that arise during the hiring process.

Under federal law, discrimination on the basis of disability is prohibited in all employment practices. Disabled individuals are protected by the Americans with Disabilities Act (the ADA). By law, covered employers (those employing more than 15 employees), as well as all state and local governments, cannot discriminate against people with disabilities in employment. The ADA also requires employers to provide reasonable accommodations to a qualified employee or a job applicant with a disability, unless it would cause undue hardship to the employer.

What qualifies as a disability for the ADA?

Under the ADA, a person who has a physical or mental impairment that substantially limits one or more major life activities and has a record of such impairment, is considered as having a disability. Major life activities are basic activities that most people can perform without difficulty, such as breathing, eating, walking, hearing, speaking, seeing and learning. Major life activities also include basic bodily functions such as cell growth, brain functions, and neurological and endocrine functions.

Who is a “Qualified” Employee or Job Applicant?

An individual with a disability is “qualified” if he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position. Obviously, a person who was paralyzed would not be qualified for a job that required lots of lifting, but may be qualified for a job as an administrative assistant.

What is Reasonable Accommodation?

Employers are required to provide reasonable accommodation to a qualified disabled employee or applicant. Reasonable accommodation may include making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. However, an employer is not required to lower production standards to make an accommodation.

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an “undue hardship” on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.

Prohibited Inquiries and Examinations

Before offering a job applicant a job, an employer may not ask about the existence, nature, or severity of a disability. Generally, applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with necessity.

Almost 2,000 current and former female employees of Wal-Mart have filed charges of discrimination in pay and promotions with the Equal Employment Opportunity Commission (EEOC). The charges were filed in 48 states (all states except Montana and Vermont), with Georgia having the third largest number of claims in the suit, at 119.

The EEOC enforces federal laws that prohibit employment discrimination. Last year, the U.S. Supreme Court denied the women the right to certify as a national class action, finding that the legal and factual issues involving the female employees did not have enough in common to be certified as a class action suit. By filing charges with the EEOC, the women protect their right to sue for discrimination. The claims date back to 1998, and include both Wal-Mart and Sam’s Club.

In addition to the charges with the EEOC, regional class actions were filed in federal courts in California and Texas in October 2011, and numerous other class actions are expected to be filed in other states this year. The lawsuits claim that attitudes were pervasive throughout Wal-Mart that men deserved more money than women, and that men were better managers. One lawsuit also alleges that job opportunities weren’t posted, but were passed along through word-of-mouth, primarily to men. The case began when a female employee was fired after she complained that she was discriminated against based on her sex. She found out that a male employee with the same job and less experience was making $23,000 per year more than she was.

By law, employers are not allowed to discriminate against employees based on sex. Currently, the Equal Pay Act requires that men and women in the same workplace must be given equal pay for equal work. Their jobs don’t have to be identical, but they must be substantially equal. Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act also prohibit compensation discrimination on the basis of sex.

Employees in who feel that they have been discriminated against in the workplace based on sex may have a claim for employment discrimination. Those individuals should seek out a qualified Georgia employment attorney as soon as possible to explore the possibility of pursuing a legal claim.

Shorter University, a Baptist college located in Rome, Georgia, recently mandated that its 200 employees sign a “personal lifestyle pledge”. The pledge declared that they reject adultery, premarital sex, and homosexuality. The pledge also required that employees abstain from using drugs and participate in local churches.

According to some sources, many faculty members have resigned or are planning to resign as a result of the pledge. Some faculty members took issue with the fact that the pledge singled out some sins but not others, while others claimed that the pledge was approved as a result of a very biased survey. Students are also said to be unhappy about the pledge. Supporters of the pledge claim that the goal was to declare what the college was all about.

So are employers allowed to discriminate on the basis of religion? Yes. Although Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating in employment based on religion, there are exceptions. Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. This exception only applies to institutions whose purpose and character are primarily religious. In order to decide whether an entity is religious, courts consider whether it’s working for a religious purpose, whether its day-to-day operations are religious, whether it’s not-for-profit, and whether it’s affiliated with a church or another religious organization.

Therefore, a private employer that is considered religious can discriminate in its hiring and general employment practices. However, there are limits to what a religious employer can do. For example, a religious employer can’t otherwise discriminate in employment on the basis of race, national origin, sex, etc. by claiming that according to its religious beliefs, their employees are not allowed to associate with people of other races.

In general, religious employers have some wiggle room in what types of employment discrimination they can engage in, although there are limits. The actions taken by Shorter University are most likely legal, although they may end up ultimately having a detrimental effect on the faculty and student populations.

This month, four Muslim men sued IHOP, claiming they were wrongfully terminated from their managerial positions because of their religion, as well as their ethnicity.

In the lawsuit, they claimed that although they got positive performance reviews, all were fired in the course of a year and were replaced by white, non-Muslim managers. They allege that one of those replacements told other managers at a meeting that “Arab men treat women poorly and with disrespect . . . we’re going to have to let these people go and have new faces coming in”. One of the men at the meeting was fired a few weeks later for an incident that occurred while he was counseling a female employee over a mistake she made.

Late last year, a Georgia representative introduced a bill in the Georgia House of Representatives that would ban job discrimination against state employees because of their sexual orientation or gender identity. The bill failed to pass out of the House Judiciary Committee earlier this month, and is dead for the year. The representative plans to introduce the bill again next year.

Some concerns that were expressed against the bill included fears that Georgia would be required to hire pedophiles and necrophiliacs. Others were concerned the bill would serve as an affirmative action bill that would create a quota system. However, the LGBT (lesbian, gay, bisexual and transgender) community enthusiastically supports the measure, expressing that they are afraid that if their sexual orientation became known at work with the state of Georgia, they would be discriminated against or even fired. The state representative who introduced the bill believes that the bill will have more support in 2013 because it is not an election year.

Currently, 21 other states ban discrimination against public employees based on their sexual orientation. Twelve states have laws that prohibit employment discrimination against state employees based on gender identity and expression. There is no federal law that addresses employment discrimination based on sexual orientation or gender identity in the federal government. Since 1994, a bill has been proposed in the U.S. Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by nonreligious employers with at least 15 employees. The bill has not yet passed and is currently in committee.

If you feel that you have been discriminated against in an employment situation, contact a qualified employment attorney today. You may have a case against the employer, depending on what type of discrimination is involved.